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Harper’s ‘tough on crime’ agenda gets a well-deserved slap: Editorial

Supreme Court’s ruling against mandatory minimum sentences for gun crimes sends a signal that they’re a blunt instrument that can crush lesser offenders along with those who truly deserve harsh punishment.

In itself, the ruling will affect very few Canadians. Even the two men who were at the centre of the case did not argue that the sentences imposed on them for violating the gun laws were unjust.

But the judgment does send a vital message from the highest court that mandatory minimum sentences are a blunt instrument that can crush lesser offenders even as they deal with the most serious ones who truly deserve harsh punishment. At the same time, the court’s majority (led by Chief Justice Beverley McLachlin) made crystal clear its view that “sentencing is inherently a judicial function.” In other words: don’t rob judges of their discretion to craft the proper sentence for each individual case.

The law in question forced judges to impose a minimum sentence of three years in prison on a first offence for anyone caught possessing a loaded, prohibited firearm, and five years for a second offence. The court ruled that the law “casts its net over a wide range of potential conduct” and so a judge might have to impose a harsh prison term on a “licensed and responsible gun owner” who makes a mistake on how he stores his gun. That, they found, would amount to cruel and unusual punishment prohibited under Section 12 of the Charter.

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And the court took a swipe at the very concept of mandatory minimums, so favoured by the Harper government. “Mandatory minimum sentences,” McLachlin wrote, “by their very nature have the potential to depart from the principle of proportionality in sentencing.”

This was no slam dunk, however. A strong minority of three judges spoke up in favour of Parliament’s right to legislate firmly against gun crime, writing that “it is not for this Court to frustrate the policy goals of our elected representatives.” That’s as much a political argument as it is a legal one, surprisingly close to the type of ideological debate we more often expect from the U.S. Supreme Court.

But in this case the majority of our Supreme Court got it right on the substance. There’s no evidence that mandatory minimum sentences actually deter crime, as just about every expert who has studied them has concluded. Instead, they swell prison populations, drive up the costs of the justice system, and disproportionately affect poor people, aboriginals and other vulnerable groups. They’re unfair, and they don’t work.

Many U.S. states have come to the same conclusion, and backed away from mandatory minimums after decades of imposing ever-harsher laws. Rather than learn from that experience, the Harper government has brought in minimums for more and more crimes, even as the actual level of crime is at a 45-year low.

That’s about political posturing, not making the streets safer. Now the Supreme Court has left the government’s defence of its position looking even more tattered.

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